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G.R. No.

115129 February 12, 1997

IGNACIO BARZAGA, petitioner,
ALVIAR, respondents.

December. But he knew that the niche would not be finish in time for the scheduled burial the following day.
His laborers had to take a break on Christmas Day and they could only resume in the morning of the twentysixth. The niche was completed in the afternoon and Barzaga's wife was finally laid to rest. However, it was
two-and-a-half (2-1/2) days behind schedule.
On 21 January 1991, tormented perhaps by his inability to fulfill his wife's dying wish, Barzaga wrote private
respondent Alviar demanding recompense for the damage he suffered. Alviar did not respond. Consequently,
petitioner sued him before the Regional Trial Court. 1


Resisting petitioner's claim, private respondent contended that legal delay could not be validly ascribed to him
because no specific time of delivery was agreed upon between them. He pointed out that the invoices
evidencing the sale did not contain any stipulation as to the exact time of delivery and that assuming that the
materials were not delivered within the period desired by petitioner, the delivery truck suffered a flat tire on the
way to the store to pick up the materials. Besides, his men were ready to make the delivery by ten-thirty in the
morning of 22 December but petitioner refused to accept them. According to Alviar, it was this obstinate refusal
of petitioner to accept delivery that caused the delay in the construction of the niche and the consequent
failure of the family to inter their loved one on the twenty-fourth of December, and that, if at all, it was petitioner
and no other who brought about all his personal woes.

The Fates ordained that Christmas 1990 be bleak for Ignacio Barzaga and his family. On the nineteenth of
December Ignacio's wife succumbed to a debilitating ailment after prolonged pain and suffering. Forewarned
by her attending physicians of her impending death, she expressed her wish to be laid to rest before
Christmas day to spare her family from keeping lonely vigil over her remains while the whole of Christendom
celebrate the Nativity of their Redeemer.
Drained to the bone from the tragedy that befell his family yet preoccupied with overseeing the wake for his
departed wife, Ignacio Barzaga set out to arrange for her interment on the twenty-fourth of December in
obedience semper fidelis to her dying wish. But her final entreaty, unfortunately, could not be carried out. Dire
events conspired to block his plans that forthwith gave him and his family their gloomiest Christmas ever.

Upholding the proposition that respondent incurred in delay in the delivery of the construction materials
resulting in undue prejudice to petitioner, the trial court ordered respondent Alviar to pay petitioner (a)
P2,110.00 as refund for the purchase price of the materials with interest per annum computed at the legal rate
from the date of the filing of the complaint, (b) P5,000.00 as temperate damages, (c) P20,000.00 as moral
damages, (d) P5,000.00 as litigation expenses, and (e) P5,000.00 as attorney's fees.

This is Barzaga's story. On 21 December 1990, at about three o'clock in the afternoon, he went to the
hardware store of respondent Angelito Alviar to inquire about the availability of certain materials to be used in
the construction of a niche for his wife. He also asked if the materials could be delivered at once. Marina
Boncales, Alviar's storekeeper, replied that she had yet to verify if the store had pending deliveries that
afternoon because if there were then all subsequent purchases would have to be delivered the following day.
With that reply petitioner left.

On appeal, respondent Court of Appeals reversed the lower court and ruled that there was no contractual
commitment as to the exact time of delivery since this was not indicated in the invoice receipts covering the
sale. 2
The arrangement to deliver the materials merely implied that delivery should be made within a reasonable
time but that the conclusion that since petitioner's workers were already at the graveyard the delivery had to
be made at that precise moment, is non-sequitur. The Court of Appeals also held that assuming that there was
delay, petitioner still had sufficient time to construct the tomb and hold his wife's burial as she wished.

At seven o'clock the following morning, 22 December, Barzaga returned to Alviar's hardware store to follow up
his purchase of construction materials. He told the store employees that the materials he was buying would
have to be delivered at the Memorial Cemetery in Dasmarinas, Cavite, by eight o'clock that morning since his
hired workers were already at the burial site and time was of the essence. Marina Boncales agreed to deliver
the items at the designated time, date and place. With this assurance, Barzaga purchased the materials and
paid in full the amount of P2,110.00. Thereafter he joined his workers at the cemetery, which was only a
kilometer away, to await the delivery.

We sustain the trial court. An assiduous scrutiny of the record convinces us that respondent Angelito Alviar
was negligent and incurred in delay in the performance of his contractual obligation. This sufficiently entitles
petitioner Ignacio Barzaga to be indemnified for the damage he suffered as a consequence of delay or a
contractual breach. The law expressly provides that those who in the performance of their obligation are guilty
of fraud, negligence, or delay and those who in any manner contravene the tenor thereof, are liable for
damages. 3

The construction materials did not arrive at eight o'clock as promised. At nine o'clock, the delivery was still
nowhere in sight. Barzaga returned to the hardware store to inquire about the delay. Boncales assured him
that although the delivery truck was not yet around it had already left the garage and that as soon as it arrived
the materials would be brought over to the cemetery in no time at all. That left petitioner no choice but to rejoin
his workers at the memorial park and wait for the materials.

Contrary to the appellate court's factual determination, there was a specific time agreed upon for the delivery
of the materials to the cemetery. Petitioner went to private respondent's store on 21 December precisely to
inquire if the materials he intended to purchase could be delivered immediately. But he was told by the
storekeeper that if there were still deliveries to be made that afternoon his order would be delivered the
following day. With this in mind Barzaga decided to buy the construction materials the following morning after
he was assured of immediate delivery according to his time frame. The argument that the invoices never
indicated a specific delivery time must fall in the face of the positive verbal commitment of respondent's
storekeeper. Consequently it was no longer necessary to indicate in the invoices the exact time the purchased
items were to be brought to the cemetery. In fact, storekeeper Boncales admitted that it was her custom not to
indicate the time of delivery whenever she prepared invoices. 4

By ten o'clock, there was still no delivery. This prompted petitioner to return to the store to inquire about the
materials. But he received the same answer from respondent's employees who even cajoled him to go back to
the burial place as they would just follow with his construction materials.
After hours of waiting which seemed interminable to him Barzaga became extremely upset. He decided
to dismiss his laborers for the day. He proceeded to the police station, which was just nearby, and lodged a
complaint against Alviar. He had his complaint entered in the police blotter. When he returned again to the
store he saw the delivery truck already there but the materials he purchased were not yet ready for loading.
Distressed that Alviar's employees were not the least concerned, despite his impassioned pleas, Barzaga
decided to cancel his transaction with the store and look for construction materials elsewhere.

Private respondent invokes fortuitous event as his handy excuse for that "bit of delay" in the delivery of
petitioner's purchases. He maintains that Barzaga should have allowed his delivery men a little more time to
bring the construction materials over to the cemetery since a few hours more would not really matter and
considering that his truck had a flat tire. Besides, according to him, Barzaga still had sufficient time to build the
tomb for his wife.

In the afternoon of that day, petitioner was able to buy from another store. But since darkness was already
setting in and his workers had left, he made up his mind to start his project the following morning, 23

This is a gratuitous assertion that borders on callousness. Private respondent had no right to manipulate
petitioner's timetable and substitute it with his own. Petitioner had a deadline to meet. A few hours of delay
was no piddling matter to him who in his bereavement had yet to attend to other pressing family concerns.
Despite this, respondent's employees still made light of his earnest importunings for an immediate delivery. As
petitioner bitterly declared in court " . . . they (respondent's employees) were making a fool out of me." 5

We also affirm the grant of exemplary damages. The lackadaisical and feckless attitude of the employees of
respondent over which he exercised supervisory authority indicates gross negligence in the fulfillment of his
business obligations. Respondent Alviar and his employees should have exercised fairness and good
judgment in dealing with petitioner who was then grieving over the loss of his wife. Instead of commiserating
with him, respondent and his employees contributed to petitioner's anguish by causing him to bear the agony
resulting from his inability to fulfill his wife's dying wish.

We also find unacceptable respondent's justification that his truck had a flat tire, for this event, if indeed it
happened, was forseeable according to the trial court, and as such should have been reasonably guarded
against. The nature of private respondent's business requires that he should be ready at all times to meet
contingencies of this kind. One piece of testimony by respondent's witness Marina Boncales has caught our
attention - that the delivery truck arrived a little late than usual because it came from a delivery of materials in
Langcaan, Dasmarinas, Cavite. 6 Significantly, this information was withheld by Boncales from petitioner when
the latter was negotiating with her for the purchase of construction materials. Consequently, it is not
unreasonable to suppose that had she told petitioner of this fact and that the delivery of the materials would
consequently be delayed, petitioner would not have bought the materials from respondent's hardware store
but elsewhere which could meet his time requirement. The deliberate suppression of this information by itself
manifests a certain degree of bad faith on the part of respondent's storekeeper.

We delete however the award of temperate damages. Under Art. 2224 of the Civil Code, temperate damages
are more than nominal but less than compensatory, and may be recovered when the court finds that some
pecuniary loss has been suffered but the amount cannot, from the nature of the case, be proved with certainty.
In this case, the trial court found that plaintiff suffered damages in the form of wages for the hired workers for
22 December 1990 and expenses incurred during the extra two (2) days of the wake. The record however
does not show that petitioner presented proof of the actual amount of expenses he incurred which seems to
be the reason the trial court awarded to him temperate damages instead. This is an erroneous application of
the concept of temperate damages. While petitioner may have indeed suffered pecuniary losses, these by
their very nature could be established with certainty by means of payment receipts. As such, the claim falls
unequivocally within the realm of actual or compensatory damages. Petitioner's failure to prove actual
expenditure consequently conduces to a failure of his claim. For in determining actual damages, the court
cannot rely on mere assertions, speculations, conjectures or guesswork but must depend on competent proof
and on the best evidence obtainable regarding the actual amount of loss. 8

The appellate court appears to have belittled petitioner's submission that under the prevailing circumstances
time was of the essence in the delivery of the materials to the grave site. However, we find petitioner's
assertion to be anchored on solid ground. The niche had to be constructed at the very least on the twentysecond of December considering that it would take about two (2) days to finish the job if the interment was to
take place on the twenty-fourth of the month. Respondent's delay in the delivery of the construction materials
wasted so much time that construction of the tomb could start only on the twenty-third. It could not be ready for
the scheduled burial of petitioner's wife. This undoubtedly prolonged the wake, in addition to the fact that work
at the cemetery had to be put off on Christmas day.

We affirm the award of attorney's fees and litigation expenses. Award of damages, attorney's fees and
litigation costs is left to the sound discretion of the court, and if such discretion be well exercised, as in this
case, it will not be disturbed on appeal. 9
WHEREFORE, the decision of the Court of Appeals is REVERSED and SET ASIDE except insofar as it
GRANTED on a motion for reconsideration the refund by private respondent of the amount of P2,110.00 paid
by petitioner for the construction materials. Consequently, except for the award of P5,000.00 as temperate
damages which we delete, the decision of the Regional Trial Court granting petitioner (a) P2,110.00 as refund
for the value of materials with interest computed at the legal rate per annum from the date of the filing of the
case; (b) P20,000.00 as moral damages; (c) P10,000.00 as exemplary damages; (d) P5,000.00 as litigation
expenses; and (4) P5,000.00 as attorney's fees, is AFFIRMED. No costs.

This case is clearly one of non-performance of a reciprocal obligation. In their contract of purchase and sale,
petitioner had already complied fully with what was required of him as purchaser, i.e., the payment of the
purchase price of P2,110.00. It was incumbent upon respondent to immediately fulfill his obligation to deliver
the goods otherwise delay would attach.
We therefore sustain the award of moral damages. It cannot be denied that petitioner and his family suffered
wounded feelings, mental anguish and serious anxiety while keeping watch on Christmas day over the
remains of their loved one who could not be laid to rest on the date she herself had chosen. There is no
gainsaying the inexpressible pain and sorrow Ignacio Barzaga and his family bore at that moment caused no
less by the ineptitude, cavalier behavior and bad faith of respondent and his employees in the performance of
an obligation voluntarily entered into.